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Bar News - September 17, 2010

Opinion: My Life as a Judge


I recently sat as a judge for a moot court competition among high school students. It was held in Hillsborough Superior Court South on a Saturday. Although I have practiced law now for more than 30 years, this was my only experience on the bench. It gave me a different perspective. A very different perspective.

First, I would like to confirm that those strange rumors that I have heard for years are true: judges really do work. When looking down [at their desks], they are not doing crossword puzzles. And when they seem to concentrate, it is not to decide what white wine to order with the fish at dinner.

Judges give the impression of having pretty easy jobs. We see them in court mainly just sitting there. In the movies, the judge only says things like "Overruled!" and, occasionally, "This is the last time I am going to warn you about that!"

I discovered that judging is hard work. In fact, it is very hard work. A lawyer pays attention to his side of the case. The judge has to pay attention to both sides. Not only that, but he has to react within seconds. And he is expected to know stuff. The last time I had to know stuff was when I took the bar exam.

Lawyers can just make up stuff half the time. The other half of the time we can charge for gems of wisdom like, "Well, the law can be read to say this, but then again an argument can be made that it says that!" I learned almost immediately as a judge that I canít get away with those things on the bench. When someone made an objection, I wanted to say, "I can sustain that objection Ė but then again, I can see how it could be overruled!" Before I got that out of my mouth, I realized it would not fly.

I also learned that I not only had to pay attention to everything, but I also had to remember most of it. During re-examination of a witness, opposing counsel objected that a question went beyond the scope of the original examination. That meant I had to remember things said as long ago as six minutes! Iím not used to that.

I gave a ruling that at least sounded decisive, but I realized I was going to have to take notes. A lot of notes. I had thought myself pretty impressive sitting higher than everyone else and wearing those fetching black robes, but suddenly I had to take notes like a school kid! Which means I had to be able to read my own handwriting!

My life as a judge only lasted about two hours, which I believe is the lifespan of some of the more primitive insects. I found it exhausting and could not imagine doing it for a whole day; but having read stories about prisoners in the Gulag, I realized that you can get used to anything, provided it does not kill you along the way.

Another thing I should mention is that after I took off the robes and walked straight through the courtroom, no one seemed to recognize me as the judge. At long last I understood how Superman passes as Clark Kent, just by taking off the cape and putting on glasses.

What I took away from all this is an appreciation of judging as a profession in its own right. Iíve read medical books, but I would not attempt surgery. In the same way, I donít think that any lawyer should jump into being a judge without training and a lot of experience from the ground up. I suppose you could learn on the job - provided no one minds how much law you butcher along the way.

But it seems unlikely that such a thing could happen in real life. That would be as farfetched as someone who never sat as a judge being appointed to the U.S. Supreme Court.

Mark Rufo is a principal at Rufo & Associates in Nashua. He has been a member of the NH Bar since 1979.

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